We know that torture is going on in secret and not so secret prisons. We know thanks to the excellent research done by <www.cageprisoners.com> that elements of the British government, be they MI5, MI6 or diplomats from the FCO, have been involved. Yet we seem unable to stop it. Civic society raises its voices in anger, yet nothing changes. As yet there has been no commitment from the British Government to cease their collaboration with the Americans in either facilitating rendition or torture.
But involvement in human rights abuses, torture, and detention without trial are not new instruments of the British State. Thousands of people in Africa, Asia and the Far East lost their lives in anti-colonial struggles; while in Northern Ireland there was collaboration with Protestant death squads and torture was the order of the day. What is different this time is that detention without trial or its variant of control orders are happening on the mainland, and the collaboration with secret prisons, torture and rendition is almost public with little attempt to deny it. In fact the ‘war on terror’ provides a useful ideological justification for any and every executive act. Although theoretically there is a Human Rights Act which should govern the activities of the state, this does not appear to have acted to stop most actions other than for the moment to frustrate the return of some North Africans to their countries of origin.
I am going to focus my attention on the UK for a number of reasons. Firstly we are the USA’s main ally; secondly what Britain does and says in the world is still important; and thirdly this is where we are and where we can hopefully influence legislation and events.
What avenues are open for civic society and political activists to prise information from the state as to its involvement in what is in effect state terror? I intend to examine what vehicles for democratic accountability exist to rein in the activities of the intelligence agencies and secret police. It is a sorry story. The minute the flag of ‘national security’ is raised we are supposed to no longer think rationally and to refrain from asking questions. According to Mr Bush ‘the war on terror’ is a ‘long war’ and already the Government is promising consolidated anti-terrorist legislation during 2007. I bet that this legislation will not liberalise the law in any way. Those of us who care about civil liberties are constantly on the defensive protesting against further erosions. Should the tables not be turned by us aggressively campaigning for the extension of liberties rather than their mere protection?
All the international resolutions dealing with terrorism start off by saying, and I quote for example UN Security Council Resolution 1566: ‘States must ensure that any measures taken to combat terrorism comply with all their obligations under international law.’ But then immediately the war on terror ideologues scream ‘special circumstances’; for example Tony Blair on 5 August 2005: ‘Let no-one be in any doubt. The rules of the game are changing.’ In practice this means an erosion of our civil liberties.
In this analysis I will not be looking at the role of the judiciary, as better legal minds than mine can provide a fuller perspective on their stance. Let’s start with the standard means of obtaining information on the state’s activities. Approximately 40,000 Parliamentary Questions are asked annually by Members of both Houses of Parliament. However Ministers have consistently refused to answer questions on the activities of the security services. A mechanism does now exist for a Minister to be asked once each session if they will now answer questions on a subject previously blocked. It is not clear whether any MP is using this mechanism to highlight the lack of parliamentary oversight of the intelligence services.
The standard answer of Ministers to any questions relating to the activities of the intelligence services goes along the lines of: ‘It is the policy of successive Governments not to comment on the activities of the security services’. Or in response to the question whether UK security services personnel had travelled in an aircraft used for the purpose of an international rendition, the Foreign Secretary Jack Straw commented: ‘It is not the Government’s policy to comment on intelligence matters.’ Similar answers were given to other questions relating to British security personnel involvement in rendition.
Rendition was the subject of over 100 Parliamentary Questions. In many instances the answers were evasive, subsequently shown to be inaccurate, with ministers being forced to apologise, or a mere reiteration of US stated policy: namely, the Americans do not torture or send people to be tortured. It should be noted that Condoleeza Rice, when addressing European concerns, did not at any point deny the existence of the alleged secret prisons, of the flights transporting detainees, but reaffirmed the need to resort to extraordinary renditions in the context of the efforts to counter terrorism. The only thing that Ms Rice denied was the use of torture. However, this must be seen in the context of what the Americans regard as torture. According to CIA Director Porter Goss, the CIA does not engage in torture but in ‘unique and innovative’ methods of prisoner interrogation. These methods include blows to the feet and abdomen, as well as ‘water boarding’ where the prisoner is made to believe that he is drowning. As Human Rights Watch has shown in a chapter in a book on torture, many of the methods of interrogation practised by the Americans have been condemned as torture by their very own State Department when used by other countries.
Only through the persistence of various MPs was it finally conceded that under the Clinton administration rendition with British permission had taken place through UK airspace on two occasions. This was after several denials. The number of flights by CIA chartered aircraft over UK land or landings has varied from 14 to 73, as ministers dance around claiming that they do not have the information. When ministers have responded, they claim to have searched Foreign Office, Home Office, Transport and Defence Ministry records but have failed to reveal whether the intelligence and security agencies have been consulted as to what lies in their records.
It is more than likely that MI6 and MI5 were informed as to any renditions as one would expect intelligence collaboration to be between agencies. Meanwhile the implication of their answers to the parliamentary questions is that since the Bush administration came to power they have never requested the British government’s permission to use British airspace for rendition purposes; and since they have never requested it, it has never happened. Yet in a letter to William Hague, dated 6 February 2006, Jack Straw admitted that an approach was made by the US authorities in connection with the rendition of a detainee in 2004. I am as yet unable to obtain a copy of this letter.
Ministers have conceded that, ‘UK officials [by which they mean members of MI5 and MI6] have visited Guantanamo Bay to ask detainees about matters relating to the UK’s national security’; and ministers have indirectly indicated that they will continue to rely on information even if it has been obtained through torture or from prisoners who have been rendered by the CIA. (Baroness Scotland in answer to a question from Norman Tebbit 30 January 2006.) This effectively means collaboration. If ministers were to give a directive to the intelligence agencies to refuse to accept information from their allies which had been obtained illegally it would send a very strong message to its allies that the use of secret prisons, Guantanamo Bay, torture and rendition was unacceptable. To condemn, but then to make use of information obtained by illegal means not only undermines the condemnation but shows hypocrisy and a failure to stand up for fundamental principles.
While as yet no case of actual kidnapping by the CIA has taken place on British soil unlike, say, those in Italy, German or Sweden, there have been more subtle ways of achieving the same objective. A classic case of collaboration and deniability involves the case of three British residents who were questioned at Gatwick Airport in November 2002. After 4 days in custody they were cleared of suspicion and released to fly off to Gambia. MI5, according to documents later declassified, cabled the CIA (called ‘a foreign intelligence agency’ in the documents) and said that they were Islamic extremists and that they were flying to Gambia. A subsequent cable reminded the CIA of the first cable and gave the men’s flight details and said that they were associates of Abu Qatada, a radical Muslim cleric. They were arrested in Gambia by Gambian security and the CIA and eventually landed in Guantanamo Bay. The intention was to force them to act as informers.
One of the men arrested in Gambia and subsequently released said that when he was questioned by his American interrogator and demanded to contact a lawyer and the British Embassy he received an illuminating response: ‘Who do you think asked us to arrest you? Where do you think this information came from, the questions we are asking you?’ The men have been visited at least six times at Guantanamo Bay by MI5 officials promising their release should they agree to act as informers. When they sent the cable MI5 must have known of the consequences. If they did not, then the agents concerned should not be working in a so-called intelligence agency. This case illustrates how close collaboration is with the American authorities and furthermore how the British government distances itself from American activities (we condemn Guantanamo Bay) while at the same time making full use of its facilities and detention without trial to bring pressure on detainees.
Andrew Gilligan traced the journey of a Londoner and British resident Benyam Mohammad el-Habashi from Pakistan to Morocco and finally to Guantanamo Bay. Jack Straw conceded that the security services had questioned Mohammad in Karachi prior to him been handed over to the Americans. In Morocco he was tortured by having his penis cut with a razor. Once the torture started he was interrogated using information about his home life in London, his girlfriend and his school that could only have come from the British.
FOIA
While the public do not have access to ask Parliamentary Questions other than through a friendly MP they can utilise the Freedom of Information Act. However this Act, as well as the previous Code of Practice on Access to Government Information, has placed the security and intelligence agencies outside their scope. Furthermore the Act contains sweeping exemptions on the grounds of national security. In the USA, while the national security exemptions exist, the intelligence agencies are covered. The American Civil Liberties Union (ACLU) has very successfully brought a large number of Freedom of Information Act cases which have exposed widespread acts of torture and abuse of human rights at Abu Ghraib, Guantanamo Bay etc. In fact details of the over 200 flights of CIA aircraft via the UK emerged through Freedom of Information Act requests lodged in the USA.
Parliamentary Select Committees have played a role in looking at aspects on the ‘War on Terror’. The Joint Committee on Human Rights, which comprises member of both the House of Lords and Commons, has examined the compliance of the UK with the UN Convention on Torture as well as holding sessions on Counter Terrorism Policy and Human Rights. The latter covered renditions as well as torture. Generally they have focussed on policy rather than operational details. Occasionally a committee will get tired of been used as a conduit for government propaganda and will assert its independence. The Foreign Affairs Committee has focused on the Foreign Policy Aspects of the War on Terrorism and this has led to the exposing of cracks in the governments’ denials.
The chairman of the committee, Mike Gapes, responded in very strong language to a letter from the Foreign Secretary, dated 12 January 2006.
‘You ask me to justify the Committee’s view that its questions on rendition have not been taken seriously. There is nothing new in this. You will recall that in a Report at the end of the last Parliament, the Committee concluded that, “the Government has failed to deal with questions of extraordinary rendition with the transparency and accountability required on so serious an issue” and called on it to “end its policy of obfuscation.” The comment was justified at the time and in the Committee’s view it remains justified.’
Gapes then dealt with the vexed issue of the Intelligence and Security Committee.
‘Finally you draw the Committee’s attention once again to the work of the ISC. You know very well the FAC’s view on the ISC. (We) do not accept that legiti-mate lines of inquiry for the FAC can be closed off simply because the ISC has taken an interest in them. There can be no question of overlap between a select committee of the House and a statutory body appointed by and reporting to the Executive.’
The committee then went onto list 10 questions relating to torture and rendition and characterised the answers from the FCO, for example: ‘The FCO response does not directly answer the questions. This subsequently turned out not to be true’ etc. Gapes’ response received hardly any press coverage.
The Intelligence and Security Committee
The committee which the government says provides oversight of the intelligence agencies is the Intelligence and Security Committee which is not a Parliamentary Select Committee but is appointed by the Prime Minister and staffed by officials from the Cabinet Office. Its reports are first submitted to the Prime Minister who has the power to censor them before they are passed onto both Houses of Parliament. The reports have tended to be lacklustre and are rarely controversial. They are a safe pair of hands – hence the government preference for dealing with them. This committee actually produced a report ‘The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq’ in 2005. This was pretty anodyne: they failed to see anything significantly wrong.
After mentioning that they had taken evidence from Amnesty International, who had made two specific allegations about ill-treatment by British intelligence personnel, the Committee washed their hands of the matter by saying that ‘we are not the statutory body that investigates individual complaints into the activities of the UK intelligence and security agencies; that is the Investigatory Powers Tribunal.’ If ever there was a case of passing the buck this must be it. The Investigatory Powers Tribunal has, since its inception, never found against the security services.
As shown previously, the existence of this committee has been relied on to withhold information from Parliament and other select committees with ministers saying that this committee can be given information in confidence which cannot be given to others. The Intelligence and Security Committee lacks adequate staffing and they can be refused access to ‘sensitive material’. The committee does not advertise for witnesses and evidence, as do most of the parliamentary committees. Its reports are dotted with asterixes as material is withheld from the public.
In other countries parliamentarians are not necessarily accepting whitewash inquiries. In Germany the lower house of Parliament has established an inquiry to investigate what the current and previous governments knew about intelligence and security service activities that may have broken the law. The inquiry will examine whether the BND, the Federal Intelligence Service, helped the US in the Iraq Invasion; whether the Federal Criminal Police Office questioned terror suspects being held abroad; the alleged kidnapping of a German citizen and alleged CIA rendition flights through German airspace. This inquiry comes after a separate parliamentary investigation by the so-called oversight committee, which meets in private to oversee the intelligence services activities had cleared the government and intelligence agencies of any wrongdoing. In this country the establishment of a cross-party campaign on extraordinary rendition by over 50 MPs and Lords, chaired by Tory MP Andrew Tyrie, is to be welcomed. Firstly for its all-party nature; secondly for its involvement of more than the usual suspects. It has published a number of briefings by eminent lawyers.
British collaboration with the USA is done under the mechanism of very many different agreements, memoranda of understandings etc., many of which have never been subject to scrutiny. One of the most all embracing ones is a NATO agreement of 4 October 2001 in which NATO agreed to:
‘provide blanket over flight clearances for the United States and other Allied aircraft for military flights related to operations against terrorism; provide access for the United States and other allies to ports and airfields on the territory of NATO nations for operations against terrorism including for refuelling.’
This agreement was signed in the context of the invasion of Afghanistan. I cannot find any reference to this agreement in Hansard or any of the select committee hearings. There should be a general examination by a select committee of all international treaties to ensure that they are not used as an excuse to fail to observe international human rights standards.
The Venice Commission, which is the legal advisor to the Council of Europe, has, in an excellent report, produced an opinion on the international legal obligations of the Council of Europe Member States in respect of secret detention facilities and interstate transport of prisoners. The opinion makes 14 detailed recommendations to ensure that European collaboration with secret prisons and rendition not only ceases but does not reoccur. Its recommendations are activistic and should aid lawyers in any future European Convention cases. Interestingly enough NATO refused to co-operate with the Venice Commission in providing documentation or clarification on certain matters of military law.
What should we be calling for?
The extension of the Freedom of Information Act to cover ALL government bodies including intelligence and security agencies.
A broad ranging public inquiry/parliamentary select committee investigation into British collaboration with the American ‘war on terror’.
The Government should cease utilising information obtained through the use of torture, rendition and secret and illegal detentions
The Government should publicly pressurise the US to cease their extralegal activities, for example torture, secret prisons, rendition, extra judicial killings etc..
The British Government should, where appropriate, implement the Venice Commission recommendations.
The Intelligence and Security Committee should become a Parliamentary Select Committee and adopt a more robust attitude to its brief.
This essay was delivered as a paper at a conference, ‘Torture and Security Agencies’ in the “War on Terror”‘, in London in 2006